Tobin v. Minister for Defence  IESC 57
The cost of conducting a discovery exercise can be a major deterrent to sustaining proceedings in the Irish legal system. The decision of the Supreme Court in the case of Tobin v. Minister for Defence  IESC 57 illustrates the potentially disproportionate burden discovery can create for parties to litigation.
What is Discovery?
Discovery involves one party requesting access to documents held by the other party (or parties) to a dispute that are pertinent to the issues in the proceedings. The reason for seeking to inspect such documents is to advance that party’s case or to damage an opponent’s case. Technological advances mean that discovery has extended beyond the inspection of paper files into electronic communications such as emails, texts, phone recordings and social media interactions, turning a request for compliance with an order for discovery into a potentially enormous and costly task.
The plaintiff in this case, Mr. Tobin, was an Aer Corps mechanic employed by the State who sought discovery of 15 categories of documents to support a personal injuries claim. He alleged the State was negligent, arguing that he was exposed to hazardous chemicals in the course of his employments. The State’s objection rested on their contention that it would take ten members of staff and approximately 220 man-hours to locate, review and categorise the documents in question. It also argued that the plaintiff could seek interrogatories (a series of questions a litigant can require an opposing party to answer on oath) and admissions instead of discovery.
The High Court held that the discovery was necessary and relevant for the claim to be decided fairly, even though it would involve a significant amount of work. It also decided that the use of interrogatories would not be appropriate in this case, in a situation where the State had denied that Mr. Tobin had been exposed to dangerous chemicals.
The Court of Appeal (COA)
The State appealed the High Court decision. Allowing the appeal, the COA ruled that the courts should pursue alternative solutions. It held all other possibilities must have been exhausted and revealed to be inadequate before a discovery order is made in a case where discovery is likely to be extensive. Judge Hogan concluded that the plaintiff should only renew his discovery application if the information obtained from interrogatories proved insufficient.
Upon considering an appeal of the COA decision, the Supreme Court overturned the COA’s order and largely restored the High Court’s discovery order. The Chief Justice, Judge Clarke, highlighted the importance of discovery for increasing the potential for the court to extract the truth in cases where the facts are contested. He did concede, however, that discovery can impede access to justice if it becomes disproportionately onerous.
Implications for Discovery
The court established that an order for discovery should be made if the documents in question are both relevant and necessary for the case to be decided fairly. It also ruled that documents established as necessary should be deemed necessary for production by default. Given that relevance is determined by reference to the proceedings, parties should be alert to this when pleading their case because a very broadly pleaded case will probably prompt an onerous discovery obligation.
Judge Clarke noted that if it is suggested that the discovery of relevant documents is not necessary, the obligation is on the requested party to propose reasons and suggest alternative ways of securing the relevant information. A requesting party is not required to prove that they explored all other procedures before they can seek discovery.
The Supreme Court held that the State failed to either establish that the discovery would have been disproportionate or to suggest a suitable alternative way of obtaining the information.
Lessons of Tobin v. Minister of Defence
This case establishes that a litigant may seek a discovery order without exhausting all other procedures before seeking an order. In a commercial court case, however, procedures such as interrogatories might be more appropriate.
The Supreme Court emphasised relevance and necessity as the most important criteria for considering discovery. This decision does indicate, however, that in cases where discovery is too broad and burdensome, the party refusing discovery must present reasons for refusal and suggest another way of securing the information sought.
Nonetheless, the Chief Justice indicated that he did not think it appropriate to require a requesting party to establish that they had explored all other possible procedures before seeking discovery, even though pursuing alternative methods of seeking discovery might be relevant if the fulfilment of a discovery order was excessively onerous.
Judge Clarke presented a useful reminder of the valuable contribution discovery can make to the administration of justice. Fundamentally, discovery improves the likelihood of the court arriving at the truth in cases where facts are contested. The Chief Justice referred to the possibility that discovery can also hinder access to justice if it becomes disproportionately burdensome.